Special Interview with Eli Silverman on Recent Stop-And-Frisk Trial

This past week, I interviewed Eli Silverman, PhD (Professor, Emeritus, john Jay and Graduate Center, CUNY), about his experience testifying as an expert witness in the recent stop-and-frisk trial, Floyd, et al. v. New York City. In this interview, I asked Professor Silverman about his involvement as one of the leading scholars working on the issue of stop-and-frisk in New York City and his experience translating academic research to a wider audience. We also discussed the potential changes that will occur as a result of District Court Judge Shira Scheindlin’s ruling and the ramifications of stepping outside the academy and into the courtroom.

Can you share a bit about yourself, and your involvement as one of the leading scholars working on the issues of Stop-And-Frisk in New York City?

I have been involved for some many years on research on the NYPD. I wrote a book [NYPD Battles Crime: Innovative Strategies in Policing] that came out in 1999 that was updated in 2001, which dealt with the reforms, the very important reforms that were introduced in the police department in 1994. I went back before then, but focused on that period, from 1994 on, which was a very significant period in terms of management and crime reduction and reforms. It was essentially a positive book. But when I updated it in 2001 with an epilogue, I found I was hearing many stories and discussions about how some of the things I had considered positive were being distorted and turned on its head, and had resulted, had stemmed from management pressure from the headquarters to really just produce numbers, and these numbers were the number of summonses, the number of arrests, the number of Stop-And-Frisks, and all in the name of driving down crime.

How did you get involved with the recent Stop-And-Frisk case in New York City?

I was approached by someone I knew from the PD, who had retired, named Dr. John Eterno. He was a former captain. He is a dean now at Molloy. He had been writing and hearing stories on this as well. He approached me and said, “Let’s do some research.” So we decided to look into this issue, but the police department had become very closed and exhibited a total lack of transparency. So we did a survey of retired captains and above, which had startling results and turned out to, the story appeared on the front page of the Sunday New York Times, which caused quite a stir a few years ago. That was a survey we did. And then we did subsequently a second survey. But the first survey and other research we did resulted in a book called The Crime Numbers Game: Management by Manipulation. We talked about this phenomenon of what they call downgrading crime, moving it from felony. The major crimes that are reported in the U.S. and in New York are what I have called felony crimes, the seven major crimes, that’s how police departments keep score and compare themselves with one another. But the way they were doing it was not taking crime reports. They were moving felony crimes into other categories that’s called misdemeanor crimes, which are not publicly known. There was manipulation. Part of the manipulation ran parallel with this enormous pressure from above to drive down crime and produce activities that they thought drove down crime, and not worry about any of the collateral effects and the impacts of these strategies.

John and I were approached many months before the trial came to pass. We had discussions with them and they thought our research was relevant. The part of our research that they thought was relevant was the research, the two surveys that we did, 2004, 2008. In 2008 we did even a more extensive survey of retired people from all ranks of the police department, and those results were even more dramatic as we refined our survey. We found that the biggest up-tick in these pressures, in a number of areas including Stop-And-Frisk, occurred in 2002 in the Bloomberg-Kelly era. So the plaintiffs, the lawyers for the plaintiffs approached us. They wanted us to report on our research and testify. John could not testify because he was involved in the police department in some of these related activities. So it fell upon me to testify, which was one very stressful experience, but ultimately gratifying because the judge did cite our research, and the judge did cite my testimony, among many other things in her decision, but she did do that.

What changes do you foresee with District Court Judge Shira Scheindlin’s recent ruling on this controversial policing practice?

She wrote two decisions. One is the liability decision, which is goes through the whole thing. If you get a chance to look at, it’s unbelievable. This was a nine-10 week with tons of material and documents. She, when you read it, it’s like some 150-some-odd pages. I think it’s extremely comprehensive and extremely analytical. She goes through all this, and she just peels away the layers of the police department defense. The police department, there was an earlier case called the Daniels case, where the police department agreed to make changes, under what’s called a consent decree, no admittance of anything wrong. But in this case, the Daniels case, which has been in the works for many years, it was clear that these things that police department agreed to do, it wasn’t even a question of whether it was on the back burner or the front burner. It wasn’t on any burner. They were just narrowly focused on crime reduction. So these constitutional legal issues were not addressed. In fact, our second survey asked the question, whether there was a pressure to obey constitutional legal positions. That was the only area where the pressure decreased. In other words, while pressure to increase Stop-And-Frisk, summons, and arrests climbed, the pressure to really do it correctly, or as we said in the questionnaire, to obey constitutional legal rights, that went down. It was quite stark.

In answer to your question, the judge issued the liability, which goes through all this, and in the second decision, which is some 50-some-odd pages, I think, is called the remedy. This speaks to your question, I think. The remedy may be pretty stark. It’s uncertain now because she appointed a federal monitor. Now no police department wants to be overseen by a federal monitor, because they don’t like someone overseeing it. But the federal monitor has to report to the judge in terms of changes that she recommends in training, in changes in supervision, in changed in how forms are filled out. She recommended pilot precincts where the officers would wear cameras so it will record the interaction. So it’s not sully fleshed out what in fact will happen, but the potential is for something quite significant. Plus the fact that this is an open-ended, this introduction of a federal monitor, that she selected a lawyer. It’s open-ended, and it depends on what he works out and what the judge approves, and how long this goes on. So this could be quite a long-standing thing.

To me, it’s a very, very sad legacy of a fine police department that’s gone astray because the leadership has taken it astray. To have this record of crime decline, which we agree with, John and I, although from what we’ve ascertained we would guess it’s about half of what they claim. But nevertheless, to have this fine record, and then it actually being sullied by just the obstinance and the refusal to talk to anybody or any of the critics. The city council, as you may know, introduced the Stop-And-Frisk bill, and inspector general, and both of those were passed over the mayor’s veto. So there can be some very long-term implications. And it’s even more dramatic than that, because the New York so-called police model has been a model for not only other cities throughout the world, but throughout the U.S., but throughout the world. I just came back from Denmark where some of this stuff is percolating. I’ve been in Australia. I’ve been in Paris, which modeled this whole issue of performance measurement and management. If it’s done right it’s great, but it it’s done wrong it can have all these perverse consequences. And this has been spreading all over. And everyone now does know or will know what’s happened to the police department and their once fine reputation. Now it’s going to be a whole different ball game, and this model is not going to be be all for everyone. They’re going to have to look more carefully at how it’s done.

Some academics might be hesitant to get involved with such a controversial issue. So what do you say to critics who might question your objectivity as a scholar now, after your involvement?

You know, there’s an old saying, as a scholar all you can do is speak the truth as you know it to power. I mean, I was a reluctant warrior in this. I didn’t seek this out. In fact, when we first got our first survey results, we were floored. We were floored by the extent of it. And not only that, we had a place where they would write comments. And the comments… The interesting thing is, most of the cops agree with us. We get emails and comments and stuff all the time. But they have to remain anonymous, except for those who are recorded. I don’t know if you are aware, but there have been several who have recorded this stuff from their own station house, Schoolcraft, and Palenko, and others. So it’s not just us saying this. There’s tons of evidence to support it. But it was very stressful. At times I almost said, “Let’s forget it,” because the city did everything they could to keep me out from testifying, including demanding all our research, even the research that was not relevant to the court case.

We balked at that because it’s our research. We worked on it, and nothing to do with the court case. We had to agree that it would be held confidential. We gave some. But it wasn’t, I can assure you, it wasn’t something that I leaped into. But on the other hand, I wouldn’t have done it if I didn’t feel that the plaintiff’s case was very valid and made sense, and really was for the good. Now obviously I’m now high on the party list of the NYPD leadership, which I was when I wrote the first book. But, you know, that’s just the consequences of doing this.

But I try, everyone tries to be objective, or everyone should. We tried to be objective. We tried to call it as we saw it. The city tried to throw out our results. They tried to negate it. They tried to keep me out. And at times I said to the lawyers, I said, “You know, this is too much. I don’t really need all this.” And they said, “No. No.” I said, “It’s just too much.” They said, “They’re doing it.” What they told me is that the other side was doing it in order to discourage me and keep me out.

What sort of lessons have you learned do you have from your experience with this case about academics entering a train that’s more frequently trod by activists and journalists?

I think academics have to make a judgment for themselves. Do they want to go forward with what their research uncovers? If they feel their research is valid, and they feel that it’s supportive of a valid cause, then I think every academic has to make a choice for him or herself, whether they feel they want to be supportive. And you know, there is an argument for academic research just not being academic and in the social arena. The interesting thing is, the interesting thing here is, you have to be creative in order to get the data, especially when an organization, and here you have a large organization or a large bureaucracy, is totally nontransparent. The police department has not provided data, not responded, and we spell this out in the book, freedom of information requests.

So the academic, if he or she wants to pursue that, then they have to be creative and say, “How else can I get at this topic, if the institution itself is not providing the, giving me access?” I had access in my first book. In this one we didn’t. But what we did, fortunately, John was a retired member, and had access to the retirees list. And so we did this first through a mail list, and second through a computer program. But you have to be willing. It’s time consuming. But if you believe in something, then you have to make a decision. Do you go forward, or do you just throw in the towel. And if you believe in something then it’s an individual decision, I feel. In the process, you’re going to encounter great obstacles, and there’s no question it’s going to be stressful. Doug Muzzier asked me in an interview, he said, “Who should play you in the movie?” He was being, you know, kidding. I said, “Someone who’s very nervous.”

But that’s the nature of the game. I know this from other academics I know who have testified in cases that by nature it’s very stressful. Even before you testify, in the pretrial examination they try to knock you out, and they try to dismiss what you’ve said. And then they provide. The second day I was there, I was presented with a chart of retirees and how they were. I’d never seen this. But the city lawyer presented it to me. The plaintiff’s lawyer and the city lawyer were going back and forth whether that should be entered into the record. I had never seen this chart. And I said to the judge, I said, “May I object, your honor?” And she said, “Yes, depending on what you have to say.” I said, “Well, this chart is bogus. It doesn’t represent what it pretends to.” And then she queried the person and the city attorney, and she didn’t allow it.

There’s a certain amount of risk. I guess that’s what I’m saying. And one has to make the judgment, is the risk worth taking. In this case, the fact that on my testimony and our research was one piece in the overall decision, was gratifying, and in a way a confirmation of our research.